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Unions seeking access

Where a union has support to be recognised by an employer, but the employer is failing to engage with a request for recognition, you might expect an application to the Central Arbitration Committee (CAC). However, what happens if the party that the union wants to influence is not a party to the contract between the workers and the employer at all? In R (on the application of Independent Workers Union of Great Britain) v. Central Arbitration Committee [2019] EWHC 728, the Independent Workers Union of Great Britain (IWUGB) made an application for judicial review in respect of a decision of the CAC that it could not consider recognition where the entity concerned did not meet the statutory definition of "employer" for contractual bargaining purposes.

The University of London (University) outsourced some services to a private contractor. It had some influence over the contractual terms entered into between the contractor and their workers (although the fact and degree was a matter for evidence). IWUGB made an application to the CAC to consider recognition by the University in order to influence those terms.

The CAC is the statutory body charged with resolving trade union disputes. The CAC rejected the application in respect of the University on the basis that it was not the employer of the proposed bargaining unit. It focused on the statutory definition of "employer" in section 296(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) and the statutory requirement for there to be a contract between the individual worker in the bargaining unit and the University in order for it to consider an application for recognition. It felt that extending the definition of employer in the way the IWUGB desired would be a fundamental change in collective bargaining and would go against "fair and efficient practices and arrangements". In short, the CAC felt that this would cause chaos with some workers having to contend with both unions in respect of their actual and "de-facto" employer.

At judicial review the High Court agreed. It felt there was nothing in Article 11 of the European Convention on Human Rights (the right to freedom of assembly and association including the right to form and join trade unions) that required the IWUGB to have a right of compulsory collective bargaining with the University, particularly as it was not the relevant workers' employer and it was not a party to their contracts of employment. It held there were relevant and sufficient reasons for limiting the right to compulsory collective bargaining to the workers and their employers.

This was an attempt by the IWUGB to gain influence by the back door but, in the circumstances, it was a stretch too far. Given the definition of employer for whistleblowing, it is not alien for a broader protection to be granted to ensure the protections of fundamental rights. However, the inability for workers on the ground to manage a workable arrangement with their trade unions seems the most fundamental blocker in this case. Of course, if the contrary position had been reached this would have been another potential burden for employers to consider in an outsourcing situation. Employers will welcome one less thing to think about …

And unions with whom the relationship has turned sour

Trade unions who support or approve industrial action face the risk of a claim for inducing a breach of contract. Therefore, one angle for employers seeking an injunction to prevent this action is to argue that the trade union is acting outside the immunity provisions in the TULRCA. However, employers considering this course of action always need to be mindful that an application for an injunction will usually be refused where a union can show that it is more likely than not that it would establish immunity.

Under TULRCA a trade union loses immunity from such a claim when it authorises or approves industrial action for a prohibited reason. This month we saw the first case on the limits of section 222 TULRCA. The aim of section 222 is to prevent trade unions from forcing employees to become union members. It says that an act is not protected if the reason, or one of the reasons, for which it is done is the fact or belief that the employer (a) is employing, has employed or might employ a person who is not a member of a trade union, or (b) is failing, has failed or might fail to discriminate against such a person. Here the discrimination provisions do not stop unions for asking for equal treatment for their members, compared to non-union members, but they do stop them asking for more favourable treatment than non-union members.

The case was Birmingham City Council v. Unite and another [2019] EWHC 478. Birmingham City Council engaged with their three recognised unions (Unite, Unison and GMB) about a restructure. The GMB was the only union not to ballot its members about the proposals. The Council entered into settlement agreements with GMB members, paying compensation of approximately £4,000 per member in settlement of failure to inform and consult claims. Unite and Unison said that because the proposals were ultimately abandoned, and the threat of dismissal averted, there was no legitimate claim to settle. They said that the GMB members were being rewarded for not striking. They balloted their members for strike action when the Council refused to make equivalent payments to their members. The Council sought an injunction on the basis that it was not lawful under section 222(b) TULRCA (the discrimination provisions above). However, the application was refused on the basis that it was likely that Unite and Unison would show that strike action was lawful. This was because they were not arguing that the Council had failed to discriminate against GMB members, rather they were arguing for parity for their members.

The union made sure to maximise each opportunity to make it clear that it was parity they were looking for, including on the ballot paper which went out to members. However, it is sometimes a fine line between a union promoting discrimination and seeking parity. We can see that, on slightly different facts, a court may have been more willing to entertain this argument. However, what is clear is that a court will always bear in mind the aim of the provision which was to prevent employees from effectively being forced to become trade union members.

As with many industrial relations matters, the devil is in the detail. Employers' confidence in pushing back on requests for recognition should be bolstered where there is no contract between the employer and the relevant workers in the bargaining unit. Where employers already have a recognised trade union, and that union is asserting a position for its members, employers should ensure that what the union is asking for does not go beyond "parity" of treatment. The ballot notice and communications may be indicative of where the line is drawn.

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